VOLUME 125 JANUARY 2012 NUMBER 3 © 2012 by The Harvard Law Review Association ARTICLE WORTH A THOUSAND WORDS: THE IMAGES OF COPYRIGHT Rebecca Tushnet CONTENTS INTRODUCTION ............................................................................................................................ 684 I. THE DIFFERENCE THAT IMAGES MAKE ......................................................................... 688 A. Nothing to See Here: The Transparency of Images ...................................................... 688 B. Transparency in Law ........................................................................................................ 693 C. Images as Legal Tools ........................................................................................................ 695 D. Opacity ............................................................................................................................... 701 II. COPYRIGHT PROTECTION AND THE CONTRADICTIONS OF SIMILARITY.............. 710 A. Opacity in Copyrightability ............................................................................................. 712 B. The Substantial Similarity Test ...................................................................................... 716 1. “Look and Feel” Suffers from the Same Problems as Copyrightability ............... 716 2. The Difficulty of Judging Images ............................................................................. 719 3. Naïve Theories of Representation and the Idea/Expression Divide .................... 723 4. Infringement Analysis and Verbal Overshadowing ................................................ 733 C. Solutions ............................................................................................................................ 738 III. PRIVILEGING TEXT IN COPYRIGHT CONFLICTS .......................................................... 740 A. Comic Art: A Case Study of Words and Pictures ......................................................... 741 B. Fair Use ............................................................................................................................. 751 CONCLUSION: IMAGING/IMAGINING THE FUTURE ............................................................ 755 683 WORTH A THOUSAND WORDS: THE IMAGES OF COPYRIGHT Rebecca Tushnet∗ Copyright starts with the written word as its model, then tries to fit everything else into the literary mode. It oscillates between two positions on nontextual creative works such as images — either they are transparent, or they are opaque. When courts treat images as transparent, they deny that interpretation is necessary, claiming both that the meaning of the image is so obvious that it admits of no serious debate and that the image is a mere representation of reality. When they treat images as opaque, they deny that interpretation is possible, pretending that images are so far from being susceptible to discussion and analysis using words that there is no point in trying. The oscillation between opacity and transparency has been the source of much bad law. This Article explores the ungovernability of images in copyright, beginning with an overview of the power of images in the law more generally. The Article then turns to persistent difficulties in assessing copyrightability and infringement for visual works. In assessing copyrightability, courts draw lines between artistic choice and mere reproduction of reality, but also treat the artist as a person with a special connection to reality who possesses a way of seeing that ordinary mortals lack. Infringement analysis repeats this doubling, using the representation/reality divide to separate protected elements of a specific work from unprotected ones while simultaneously insisting that works are indivisible gestalts. Current doctrine makes impossible and self-contradictory demands on factfinders. It should be replaced with a true “reproduction” right against exact or near-exact copying. Despite this radical proposal, much of my argument is critical and diagnostic. I there- fore turn to more specific problems in authorship questions for multimedia works and fair use that highlight the instabilities in current approaches to nontextual works. Greater epistemic humility, recognizing that images make multiple meanings in multiple ways, could combat the judicial tendency to presume that images are nothing more than what they seem. INTRODUCTION opyright is literal. It starts with the written word as its model, Cthen tries to fit everything else into the literary mode. Protections for photographic, musical, audiovisual, and other modes of expression were added to the U.S. Code slowly and haphazardly, following eco- ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– * Professor, Georgetown University Law Center. Thanks to Mark Tushnet and Zachary Schrag, Amy Adler, Julie Cohen, Tomás Gómez-Arostegui, Wendy Gordon, Laura Heymann, Rob Kasunic, Douglas Laycock, Mark Lemley, Jessica Litman, Liam Murphy, Burt Neuborne, Jenni- fer Rothman, Zahr Said, Jessica Silbey, David Super, and Diane Zimmerman, as well as to parti- cipants at the 2010 Intellectual Property Scholars Conference at Berkeley, the Georgetown Facul- ty Workshop, the BYU Faculty Workshop, the Lewis & Clark Intellectual Property in the Trees series, the Loyola of Los Angeles IP Theory Colloquium, the NYU Faculty Workshop, the UNC Faculty Workshop, and the Virginia Law & Humanities Workshop. Mara Gassmann, Portia Roundtree, and Raffi Melanson provided excellent research assistance, and the staff of the Georgetown Law Library fulfilled many rather unusual requests. 684 2012] WORTH A THOUSAND WORDS 685 nomic rather than conceptual demands.1 Taking words as the proto- typical subject matter of copyright has continuing consequences for copyright law, which often misconceives its object, resulting in confu- sion and incoherence. An introductory example comes from one of the most significant copyright developments of our time, Google Book Search. Book Search involves the scanning and digitization of millions of volumes of books in library collections. Its current status is uncertain, given the recent rejection of a proposed settlement that would have gone far beyond allowing Google’s initial activity of scanning the books in or- der to provide “snippets” in response to searches.2 Under the proposed settlement, U.S. users would have been able to get free access to signif- icant portions of the scanned works and to pay for greater access.3 But the proposed settlement excluded most of the images in those books, in the same way Google’s voluntary Partner Program does.4 Many owners of copyright in images thus were not members of the set- tlement class (and are excluded from the Partner Program). Images are being scanned, but they will not be present in the versions availa- ble to users, with limited exceptions.5 Google and the plaintiffs figured out how to manage rights in books and in articles or other written con- tributions to books, including how to look for the rights holders of those works who had not opted into the settlement.6 Images, by con- trast, were too hard to deal with.7 By all indications, any opt-in set- tlement that ultimately emerges will not revise this basic bargain. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 Cf. Anne Barron, Copyright Law and the Claims of Art, 6 INTELL. PROP. Q. 368, 372–73 (2002) (“One of the most remarkable features of copyright’s historical development has been the piecemeal and particularistic manner in which its reach has extended over time to accommodate new kinds of intellectual entity. [N]ew categories of protected subject matter have not been derived by deduction from a broad concept of ‘Art’, or even ‘Visual Art’, but have been added incrementally by way of analogy with what had already received the protection of the law.”). 2 See Authors Guild v. Google Inc., 770 F. Supp. 2d 666, 678–79 (S.D.N.Y. 2011) (rejecting settlement in part because it would have released claims that were beyond the scope of the class plaintiffs’ pleadings). 3 See id. at 671–72. 4 See What Is the Google Books Partner Program?, GOOGLE BOOKS HELP, http:// books.google.com/support/bin/answer.py?answer=17855 (last visited Dec. 4, 2011). 5 See FAQs, GOOGLE BOOK SETTLEMENT, para. 8, http://www.googlebooksettlement .com/help/bin/answer.py?hl=en&answer=118704 (last visited Dec. 4, 2011). 6 Authors Guild, 770 F. Supp. 2d at 671–72 (proposing the creation of a Book Rights Registry and an Unclaimed Works Fiduciary). 7 See Authors Guild v. Google Inc., No. 05 Civ. 8136(DC), 2009 WL 3617732, at *4 (S.D.N.Y. Nov. 4, 2009) (denying motion of American Society of Media Photographers and others to inter- vene, and concluding that “it makes sense to prioritize the rights to word-based material”). But see Objections of Class Members the American Society of Media Photographers, Inc. et al. to the Proposed Settlement Between Plaintiffs the Authors Guild, Inc., Ass’n of American Publishers, Inc., et al. and Google, Inc. at 10, Authors Guild, 770 F. Supp. 2d 666 (No. 05 Civ 8136(DC)), 2009 WL 2980729, at *10 (arguing that “[t]here is no rational reason why” the proposed settlement ex- cludes photographer class members). 686 HARVARD LAW REVIEW [Vol. 125:683 Not only did the proposed settlement enact the prominence of text over other methods of communication — despite copyright’s formal medium neutrality — but almost all public discussions of the settle- ment have proceeded as if the Google database